It’s fair that four female Harvard lawprofs express their views about how problems of “sexual wrongdoing” should be handled on campus. Expressing views is the American way, and they’re every bit as entitled as anyone else. Even better, they recognize that the current regime, invented in the fevered dreams of Catherine Lhamon when she ran her fiefdom at the Department of Education, Office of Civil Rights, is patently unfair to the accused and violates due process.
Yay? Well, somewhat, and advocates for changing the star chamber of Title IX adjudication are happy to have such august “experts” on their side, at least to the extent of supporting the elimination of the worst of the nightmarish system calculated to assure that males be found guilty and punished. Often, not in that order.
It is extremely important for colleges and universities to have robust policies and procedures to address sexual wrongdoing on campus. Schools’ struggles with providing fair procedures have led some observers to throw up their hands and propose 1) that schools should not decide these cases at all; 2) that schools should toss these cases off to law enforcement instead; and 3) that schools should be legally required to refer all reports of criminal acts to law enforcement regardless of whether the schools also adjudicate the cases (sometimes called “mandatory referral”). These proposals are irresponsible.
Calling these approaches “irresponsible” is the strongest word available in the academic lexicon. But this is their normative view, despite some very serious problems. The first is that they ignore the absence of any lawful authority for colleges to create their own subconstitutional system to adjudicate crimes. Indeed, they ignore that this may well constitute misprision of felony, the duty to report crimes.
A school must be able to discipline students for violating its conduct codes and protect its students from harm, whether or not the violations are also crimes. Often the conduct involved is not a crime – for example, much sexual harassment as defined by law is not criminal conduct. And even if a violation of the school’s policy is also a crime, schools should be free to discipline the offending student without satisfying the very strict evidentiary standards that govern in criminal law and make it so hard to convict. Also, requiring schools to report all reported sexual misconduct to the police without the alleged victim’s permission interferes with that person’s autonomy, given the important privacy and relationship issues at stake.
This sounds warm and fuzzy, but it’s utter gibberish. Do the “very strict evidentiary standards” explain why our prisons are empty, because it’s “so hard to convict”? And while it’s decent of them to write “alleged victim,” what does “that person’s autonomy” have to do with what the law allows or requires? Each person, whether characterized as “alleged victim” or “survivor,” doesn’t get to create their own personal flavor of law to suit their feelz. Nor, for that matter, do four Harvard prawfs.
And yet, this gang of four has chosen to compromise a system for which there is no basis in law to begin with, under the popular guise of being “fair” to everyone.
OCR must continue to recognize the responsibility of colleges and universities to address sexual harassment and sexual assault in their communities. But in shouldering their burden, schools owe fairness to all students: the accuser and the accused. And they owe it to all their students to develop substantive definitions of sexual misconduct that don’t invite arbitrary enforcement against innocuous conduct. Only when schools adopt both fair procedures and fair substantive definitions will the sanctions they levy send the message that sexual misconduct is unacceptable.
Concealed within this homage to fairness is that these Harvard profs would leave it to a bureaucrat to “develop substantive definitions of sexual misconduct” for which students will pay. Does that work under the current administration? What about the next one, whatever that may be? Regardless, the definitions of offenses that will destroy people’s lives aren’t a matter for advocates to make up to suit their agenda. One person’s innocuous conduct is another person’s horrifying experience. These are vague, meaningless words that sound nice and accomplish nothing.
Similarly, the cry of fairness for all is misleading. Once the accuser levels her charge, the Title IX machinery of the school is dedicated to prosecuting it. There is no “fairness” involved for the accuser. This isn’t a civil action where both sides litigate their cause, but a prosecutorial system where the school takes up the accuser’s cause and, simultaneously, sits as judge of the accused. Fairness for all? The accuser’s fairness was obtained once their complaint was filed. After that, the only due process owed is to the person being prosecuted.
And how would these Harvard lawprofs manage these prosecutions?
Return to the Supreme Court’s definition of sexual harassment: unwelcome sexual conduct that is sufficiently severe or pervasive to interfere with the victim’s educational opportunity. Repeatedly the Court has said that a reasonable person test must be applied in determining whether conduct was wrongful, to provide a necessary check on arbitrary accusations. To impose liability, the decisionmaker must find that a reasonable person in the accuser’s position would experience the incident to be abusive, and also that a reasonable person in the defendant’s position would have known that the conduct was unwelcome. These traditional reasonable person limits are central to preserving academic freedom and individual autonomy.
This wouldn’t be apparent to most, but they’re misstated the Supreme Court’s test, which is “severe, pervasive and objectively offensive.” One would suspect Harvard lawprofs could get that sort of thing right. But even worse is their promotion of the reasonable person test, a lie wrapped in a pretty ribbon. Reasonable means anything but unreasonable, so unless guilt is unreasonable, you’re screwed. And when it comes to the feelings of the accuser, nothing is unreasonable.
The four prawfs go on to list tepid, equivocated protections to provide some semblance of due process protection. Not even cross-examination, the most basic means of challenging false testimony, makes it through unadulterated.
Allow parties to ask questions of other parties and witnesses in a meaningful way, even if through intermediaries rather than face-to-face or in direct confrontation.
But isn’t this better than it was? Sure, but that’s both an extremely low bar, and one that remains outside the authority of the law. More to the point, once changes are made that institutionalize a system doomed to fail the accused, everyone will pat themselves on the back and applaud how fair and wonderful they’ve been. And the results will be no different than before, lives ruined in a lawless star chamber that gives the appearance of a viable system without the substance or the authority of law.